TMI Blog2019 (10) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... t with intention to evade payment of duty and non-filing of intimation is only a procedural lapse and does not amount to suppression of fact for which benefit under Rule 6(3)(ii) read with Rule 6(3A) cannot be denied. Appeal allowed - decided in favor of appellant. - E/20522, 20523/2019 - Final Order No. 20868-20869/2019 - Dated:- 15-10-2019 - MR. S.S GARG, JUDICIAL MEMBER For the Appellant : Mr. T.R. Venkateswaran, CA For the Respondent : Mrs. D.S.Sangeetha, Joint Commissioner (AR) ORDER The appellants have filed these two appeals directed against the impugned orders both dated 05.03.2019 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant is engaged in manufacture of electronic connectors, parts of connectors, electronic connector harness and other IT products classifiable under Chapter 85 of the First Schedule to the Central Excise Tariff Act, 1985. During the course of audit of the records of the appellant, it was noticed that the appellant is involved in trading activity also which is an exempted service under Rule 2(e) of the CCR, 2004 and that they were utilizing common input services for both taxable/dutiable goods and exempted services (trading) but they were not maintaining separate inventory of input services in terms of the provisions of Rule 6(2) of CCR, 2004. The appellant had not exercised their option under sub-rule (3)(iii) of Rule 6 of CCR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944. Aggrieved by the order, the appellant filed an appeal to Commissioner (Appeals-I). The Commissioner (Appeals-I) along with 11 other appeals decided the matter and remanded the same to the original authority. The appeals were decided by the then Commissioner (A) vide OIA No. 146 to 158/2018 dated 15.02.2018. Aggrieved by the above OIA, the appellant approached the CESTAT and filed appeals vide No.E/20752/SM E/20753/2018-SM respectively. The CESTAT, Bangalore vide Final Order No. 21612-21613/2018 dated 10.10.2018 remanded the matter back to the Commissioner (A) with a direction to dispose of the appeal on merits. After the remand, the Commissioner (A) in de novo proceedings passed the impugned order and has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on various input services which have never been used towards trading of goods. He further referred to amendment made in Rule 6(3A) by Notification No. 13/2016 dated 01.03.2016 wherein Rule 3A was amended. He further submitted that the Government has substituted sub-rule 3A with intention to give clarification and the provisions of sub-rule 3A so as to make it applicable retrospectively. He further argued that non-filing of intimation is only a procedural lapse and does not amount to suppression of fact for which the benefit provided under Rule 6(3)(ii) read with Rule 6(3A) of CCR cannot be denied. In support of this submission, he relied upon the decision in the case of Vertiv Energy Pvt. Ltd. Vs CCE, Pune-I, 2019-TIOL-1003-CESTAT-MUM and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly issue involved in the present case is short reversal of CENVAT credit in terms of Rule 6(3)(iii) of CCR, 2004. This issue has been considered by the Bench of the Tribunal in the case of Reliance Industries Ltd. cited supra wherein the Tribunal after considering the provisions of Rule 6 in its entirety along with subsequent amendment vide Notification No. 13/2016 dated 01.03.2016 has held in Para 8 10 as under: 8. From the reading of Rule 6(1), it is clear that only in respect of input service used in exempted goods are not allowed. That means input or input service used in taxable service/dutiable goods, Cenvat credit is allowed. Sub-rule (2) of Rule 6 is only as an option that if any input or input services used in exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the intention of the Government to deny Cenvat credit on the input/input service even though used in the dutiable goods. Keeping the said view in mind, the substitution in sub Rule (3A) of Rule 6 was made. Therefore, the substituted provision of sub-Rule (3A) shall have retrospective effect being clarificatory. 6.1. Since the issue has been settled by the Division Bench of this Tribunal cited supra therefore by following the ratio of the said decision, I am of the considered view that the impugned order is not sustainable in law and therefore, the same is set aside by allowing the appeals on merits. With regard to non-filing of intimation, the Tribunal in the case of Vertiv Energy Pvt. Ltd cited supra held in Para 5 as u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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